Thursday, May 24, 2012

The (Ir)relevance of Gender to Judicial Decisions?

Mark Tushnet

The Supreme Court decided Blueford v. Arkansas. The case involved a prosecution for the death of a child resulting from battering, or so the prosecution charged (with apparently quite weak evidence). The Court divided 6-3, with Justices Ginsburg, Kagan, and Sotomayor dissenting in an opinion by Justice Sotomayor. I could be wrong, but I think this is the first case in which the Court has divided along gender lines. (After writing this, I checked Cavazos v. Smith, a factually similar case, but there Justice Breyer was with the dissent and Justice Kagan with the majority.)

How much can we make of this? Not much, I suspect. Neither the issue (a double jeopardy problem) nor the underlying facts implicate gender in any direct way. Perhaps what's at work is some sort of gender-related "empathy" triggered by the prosecutor's decision to "overcharge," as the three justices might have thought, and then to continue to try to obtain a conviction on an unjustified charge. (I can also imagine -- I stress the word, because I have absolutely no inside information -- Justice Kagan thinking the case close on the merits and deciding that it would be neat to have the Court line up along gender lines. For what it's worth, I note my personal judgment that Justice Sotomayor's dissent is tighter than the Chief Justice's opinion for the Court.)

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